Category Archives: VAT Planning

VAT: Trading with the EU. Changes from 1 January 2022

By   23 November 2021
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From 1 January 2022 the rules for selling to, and buying from, the EU will change.

HMRC have issued information about these changes.

Broadly, from 1‌‌ ‌January‌‌ ‌2022, businesses will no longer be able to delay making import customs declarations under the Staged Customs Controls rules that have applied during 2021. Most businesses will have to make declarations and pay relevant tariffs at the point of import. However, see details of Postponed Accounting.

Please also see a publication issued by the Cabinet Office which includes a Policy Paper on The Border Operating Model.

VAT: Input tax recovery. The Mpala Mufwankolo case

By   15 November 2021
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Latest from the courts

In the First Tier Tribunal (FTT) case of Mr Mufwankolo the dispute was whether the appellant was able to recover VAT charged by the landlord of the property from which he ran his business – a licenced retail outlet on Tottenham High Road.  

Background

The landlord had opted to tax the commercial property and charged VAT on the rent. The appellant was a sole proprietor; however, the lease was in the name of Mr Mufwankolo’s wife, and the rent demands showed her name and not that of the sole proprietor. It was contended by the appellant, but not evidenced, that the lease had originally been in both his and his wife’s names, despite his wife being the sole signatory.

The issues

Could the appellant recover input tax?

  • Did the business receive the supply?
  • Was there appropriate evidence?

It was clear that the business operated from the relevant property and consequently, in normal circumstances, the rent would be a genuine cost component of the business.

The Decision

The FTT found that there was no entitlement to an input tax claim and the appeal was dismissed. The lease was solely in the wife’s name and the business was the applicant as a sole proprietor. (There was an obvious potential for a partnership and an argument that a partnership was originally intended was advanced. The status of registration was challenged in 2003, but, crucially, not pursued).

It was possible for the property to be sub-let by the wife to the husband, however, this did not affect the VAT treatment as matters stood. Additionally, there was no evidence that the appellant actually paid any of the rent, as this was done by the tenant. There were no VAT invoices addressed to the sole proprietor.

Given the facts, there was no supply to the appellant, so there was no input tax to claim, and the issue of acceptable evidence fell away.

It was a certainty that the appeal could not succeed.

Commentary

There were a number of ways that this VAT cost could have easily been avoided had a little thought been given to the VAT arrangements. An oversight that created an avoidable tax hit.

A helpful guide to input tax considerations here: Care with input tax claims.

Legislation

The VAT Act 1994 Section 3 – Taxable person

The VAT Act 1994 Section 4 – Taxable supply

The VAT Act 1994 Section 24 (1) – Input tax

The VAT Act 1994 Section 24 (6) – Input tax claim evidence

VAT: Valuation

By   15 November 2021
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Further to my article on apportionment valuation and case review here and Transfer Pricing valuation I thought it useful to consider HMRC’s internal guidance on its approach to valuation.

Sometimes a single monetary consideration may represent payment for two or more supplies at different VAT rates. In such cases, a business is required to allocate a “fair proportion” of the total payment to each of the supplies. This requirement is set out at in The VAT Act 1994, Section 19(4).

“Where a supply of any goods or services is not the only matter to which a consideration in money relates, the supply shall be deemed to be for such part of the consideration as is properly attributable to it.”

Although this section requires an apportionment of the consideration to be performed, it does not prescribe the methods by which this is to be achieved. The most common methods are based upon the costs incurred in making the supplies or the usual selling prices of the supplies.

Examples of methods that have been found to be of general application are contained in VAT Notice 700 para 8. A business is not obliged to adopt any of these suggested methods, and HMRC may accept alternative proposals provided that they achieve a fair and reasonable result that can be supported by valid calculation.

Some sectors have special methods called margin schemes to determine apportionment of the monetary consideration. Details of these found in their notices and guidance. The schemes include:


Basics

Before it is possible to perform an apportionment calculation, there are four basic questions that need to be addressed to determine whether an apportionment is appropriate and if so, what supplies it relates to.

  1. Is there more than one supply?
  2. Is there a single consideration?
  3. Can any part of the payment be treated as outside the scope of VAT?
  4. What are the liabilities of the supplies in question?

The issue of whether there is a single or multiple supply has created problems from the outset of the tax.  The volume of case law illustrates that each decision is based on the facts of each case and there cannot be a one-size fits all approach to this issue. The most important and recent cases are here:

Card Protection Plan Ltd 

Stocks Fly Fishery

Metropolitan International Schools

The Ice Rink Company Ltd 

General Healthcare Group Limited

VAT: HMRC to end making payable orders to NETPs

By   9 November 2021
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HMRC will stop issuing payable orders to overseas non-established taxpayers (NETP – taxpayers who are registered for UK VAT but do not have a business address here). The system automatically issued a payable order if a NETP was due a repayment.

Background

HMRC has received notifications and complaints from taxpayers advising that they can no longer cash their payable orders in their country or their bank. The impact of Brexit and COVID19 has seen an increase in banks/countries no longer accepting payable orders. Consequently, HMRC were sending repayments to NETPs with the knowledge they may not be able to cash them.

New Gform

To address this issue HMRC has created a Gform that will enable NETPs to send their bank account information in order that the issue of a payable order can be avoided and a Clearing House Automated Payment System (CHAPS) payment made instead.

Access

HMRC systems do not currently have CHAPS functionality or the ability to store overseas bank information. However, once a NETP has completed the form, which is accessed via the Government Gateway HMRC will set a lock on the taxpayer’s record to prevent the payable order being automatically issued. NETPs will then receive their repayments directly into their bank account without the need to visit their bank to cash a payable order.

Information required

Information requested on the Gform will include:

  • VAT registration number
  • address
  • email address
  • bank account information
  • payable order information if necessary

Latest European VAT rates

By   2 November 2021
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NB: Not all countries listed are part of the European Union (EU).

Country VAT rates
Albania 20%
Andorra 4.5%
Austria 20% Reduced rates 19%, 10%, 13%
Belarus 20%
Belgium 21% Reduced rates of 12%, 6%
Bosnia & Herzegovina 17%
Bulgaria 25% Reduced rates 13%, 5%
Croatia 25% Reduced rates 13%, 5%
Cyprus 19% Reduced rates 9%, 5%
Czech Republic 21% Reduced rates 15%, 10%
Denmark 25% Reduced rate 0%
Estonia 20% Reduced rate 9%
Finland 24% Reduced rates 14%, 10%
France 20% Reduced rates 10%, 5.5%
Germany 19% Reduced rate 7%
Georgia 18%
Greece 24% Reduced rates 13%, 6%
Hungary 27% Reduced rates 18%, 5%
Iceland 24% Reduced rate 12%
Ireland 23% Reduced rates 13.5%, 9%
Italy 22% Reduced rates 10%, 5%
Latvia 21% Reduced rates 12%, 5%
Liechtenstein 7.7% Reduced rate 2.5%
Lithuania 21% Reduced rates 9%, 5%
Luxembourg 17% Reduced rates 14%, 8%
North Macedonia 18%
Malta 18% Reduced rates 7%, 5%
Monaco 20% Reduced rates 10%, 5.5%, 2.1%
Montenegro 21%
Netherlands 21% Reduced rates 9%
Norway 25% Reduced rates 12%, 6%
Poland 23% Reduced rates of 8%, 5%
Portugal 23% Reduced rates 13%, 6%
Romania 19% Reduced rates of 9%, 5%
Russia 20%
Serbia 20% Reduced rate 10%
Slovakia 20% Reduced rate 10%
Slovenia 22% Reduced rates 9.5%, 5%
Spain 21% Reduced rates 10%
Sweden 25% Reduced rates 12%, 6%
Switzerland 7.7% Reduced rates 3.7%, 2.5%
Ukraine 20%
United Kingdom 20% Reduced rates 12.5%, 5% 0%

Oops! – Top Ten VAT howlers

By   2 November 2021
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I am often asked what the most frequent VAT errors made by a business are. I usually reply along the lines of “a general poor understanding of VAT, considering the tax too late or just plain missing a VAT issue”.  While this is unquestionably true, a little further thought results in this top ten list of VAT horrors:

  1. Not considering that HMRC may be wrong. There is a general assumption that HMRC know what they are doing. While this is true in most cases, the complexity and fast moving nature of the tax can often catch an inspector out. Added to this is the fact that in most cases inspectors refer to HMRC guidance (which is HMRC’s interpretation of the law) rather to the legislation itself. Reference to the legislation isn’t always straightforward either, as often EC rather than UK domestic legislation is cited to support an analysis. The moral to the story is that tax is complicated for the regulator as well, and no business should feel fearful or reticent about challenging a HMRC decision.
  2. Missing a VAT issue altogether. A lot of errors are as a result of VAT not being considered at all. This is usually in relation to unusual or one-off transactions (particularly land and property or sales of businesses). Not recognising a VAT triggerpoint can result in an unexpected VAT bill, penalties and interest, plus a possible reduction of income of 20% or an added 20% in costs. Of course, one of the basic howlers is not registering at the correct time. Beware the late registration penalty, plus even more stringent penalties if HMRC consider that not registering has been done deliberately.
  3.  Not considering alternative structures. If VAT is looked at early enough, there is very often ways to avoid VAT representing a cost. Even if this is not possible, there may be ways of mitigating a VAT hit.
  4.  Assuming that all transactions with overseas customers are VAT free. There is no “one size fits all” treatment for cross border transactions. There are different rules for goods and services and a vast array of different rules for different services. The increase in trading via the internet has only added to the complexity in this area, and with new technology only likely to increase the rate of new types of supply it is crucial to consider the implications of tax; in the UK and elsewhere.
  5.  Leaving VAT planning to the last minute. VAT is time sensitive and it is not usually possible to plan retrospectively. Once an event has occurred it is normally too late to amend any transactions or structures. VAT shouldn’t wag the commercial dog, but failure to deal with it at the right time may be either a deal-breaker or a costly mistake.
  6.  Getting the option to tax wrong. Opting to tax is one area of VAT where a taxpayer has a choice. This affords the possibility of making the wrong choice, for whatever reasons. Not opting to tax when beneficial, or opting when it is detrimental can hugely impact on the profitability of a project. Not many businesses can carry the cost of, say, not being able to recover VAT on the purchase of a property, or not being able to recover input tax on a big refurbishment. Additionally, seeing expected income being reduced by 20% will usually wipe out any profit in a transaction.
  7.  Not realising a business is partly exempt. For a business, exemption is a VAT cost, not a relief. Apart from the complexity of partial exemption, a partly exempt business will not be permitted to reclaim all of the input tax it incurs and this represents an actual cost. In fact, a business which only makes exempt supplies will not be able to VAT register, so all input tax will be lost. There is a lot of planning that may be employed for partly exempt businesses and not taking advantage of this often creates additional VAT costs.
  8.  Relying on the partial exemption standard method to the business’ disadvantage. A partly exempt business has the opportunity to consider many methods to calculate irrecoverable input tax. The default method, the “standard method” often provides an unfair and costly result. I recommend that any partly exempt business obtains a review of its activities from a specialist. I have been able to save significant amounts for clients simply by agreeing an alternative partial exemption method with HMRC.
  9.  Not taking advantage of the available reliefs. There are a range of reliefs available, if one knows where to look. From Bad Debt Relief, Zero Rating (VAT nirvana!) and certain de minimis limits to charity reliefs and the Flat Rate Scheme, there are a number of easements and simplifications which could save a business money and reduce administrative and time costs.
  10.  Forgetting the impact of the Capital Goods Scheme (CGS). The range of costs covered by this scheme has been expanded recently. Broadly, VAT incurred on certain expenditure is required to be adjusted over a five or ten year period. Failure to recognise this could either result in assessments and penalties, or a position whereby input tax has been under-claimed. The CGS also “passes on” when a TOGC occurs, so extra caution is necessary in these cases.

So, you may ask: “How do I make sure that I avoid these VAT pitfalls?” – And you would be right to ask.

Of course, I would recommend that you engage a VAT specialist to help reduce the exposure to VAT costs!

VAT: Freeports – what are they? Are they beneficial?

By   12 October 2021
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Further to the background to Freeports here I consider the latest developments.

What are Freeports?

Freeports are a specific port where normal tax and customs rules do not apply. Imports can enter with simplified customs documentation and without paying tariffs. Businesses operating inside designated areas in and around the port can manufacture goods using the imports, before exporting again without paying the tariff on the original imported goods (however, a tariff may be payable on the finished product when it reaches its final destination).

Freeports are similar to Free zones, or “Enterprise Zones” which are designated areas subject to a broad array of special regulatory requirements, tax breaks and Government support. The difference is that a Freeport is designed to specifically encourage businesses that import, process and then re-export goods, rather than more general business support.

Use

Goods brought into a Freeport are not subject to duties until they leave the port and enter the UK market. Additionally, if the goods are re-exported no duty is payable at all.

If raw materials are brought into a Freeport and processed into final goods before entering the UK market, duties will be paid on the final goods.

Background

If a business chooses to use a Freeport to import or export goods, it will be able to:

  • get relief from duties and import taxes
  • use simplified declarations processes to reduce administrative burdens
  • choose which rate of Customs Duty to use if processing the goods changes their classification

If goods are purchased in the UK, a business will continue to pay duties and import taxes using the normal UK rates.

Where are they?

The eight new Freeports are located at East Midlands Airport, Felixstowe and Harwich, the Humber region, Liverpool City Region, Plymouth, the Solent, the Thames, and Teesside.

Authorisation needed to use a Freeport

A business can apply to use the Freeport customs special procedure (a single authorisation combined with easier declaration requirements) to import goods for:

  • processing and then export or for sale in the UK
  • storage and then export or for sale in the UK

Declaring goods entering the UK Freeport

A form C21 is used to declare goods entering the UK. This can be done before the goods arrive in the UK or when the goods have arrived in the UK.

Declaring goods exported

A business will normally need to submit an exit summary declaration when goods are exported from the UK. When an exit summary declaration is not needed, a business will need to give an onward export notification to HMRC.

Disposing of goods which have been processed or repaired

When a business has finished processing or repairing goods, it must leave the Freeport and dispose of the goods by either:

  • re-exporting them outside the UK
  • declaring them to another customs procedure
  • transferring them to another Freeport Business Authorisation holder
  • destroying them – usually only possible under customs supervision
  • using other simplified disposal methods

VAT on supplies in the Freeport

A business will be able to zero rate supplies within a Freeport of:

  • goods declared to the Freeport
  • services carried out on goods declared to the Freeport

When a zero rated VAT invoice is issued, it must include the reference “Free zone”.

Zero rating of goods applies if:

  • they are declared to the Freeport
  • they are sold from one authorised Freeport business to another in the Freeport
  • both Freeport businesses are registered for VAT (unless they are exempt from registering for VAT and HMRC has approved this exemption)

Benefits

The Government says that Freeports and free zones are intended to stimulate economic activity in their designated areas. Government backed economic studies have found the main advantage of Freeports is that they encourage imports by lowering duty and paperwork costs. Manufacturing businesses that are inside the Freeport can benefit from cheaper imported inputs in comparison to those outside the area. However, some commentators such as the UK Trade Policy Observatory (UKTPO) suggest that whilst some form of free zones could help with shaping export-oriented and place-based regional development programmes, it is important to ensure that trade is not simply diverted from elsewhere and that wider incentives are needed.

Evasion

Considering that the European Parliament has called for Freeports to be scrapped across the EU because of tax evasion and money laundering and that they are where trade can be conducted untaxed, and ownership can be concealed it is likely that there will be a certain degree of evasion. This a result of the lack of scrutiny on imports and means that high-value items, eg; art, can be bought and easily stored in Freeports without the kind of checks and controls they would normally face.

Summary

Any business that regularly imports and/or exports goods should consider if a Freeport will benefit their business model. This is particularly relevant if work is carried out on imported goods.

Refunds of UK VAT for non-UK businesses and EU VAT for UK businesses

By   14 September 2021
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HMRC has published updated guidance VAT Notice 723A which sets out how a business established outside the UK can claim a refund of VAT incurred here, and how to reclaim VAT incurred in the EU VAT if a business is established in the UK.

More details of how to make post-Brexit VAT claims here.

VAT: New rules for Uncertain Tax Treatments

By   7 September 2021
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The government have released draft legislation and guidance in respect of Uncertain Tax Treatments (UTT). In addition to VAT, this legislation also covers; corporation tax, income tax and PAYE.

Who is affected?

Large businesses with a:

  • turnover of more than £200 million per annum
  • balance sheet total over £2 billion

Threshold

A business must notify HMRC in cases of UTT where the tax advantage of the treatment is £5 million or more in a twelve-month period.

Start date

The new rules will be introduced from 1 April 2022.

Notification

There are three triggers for notification:

  1. Provision made in the accounts

The amount relates to a transaction which a provision has been made in the accounts, in accordance with GAAP, to reflect the probability that a different tax treatment will be applied to the transaction

2. HMRC’s known interpretation of the law

Reliance was placed on an interpretation or application of the law that is different to HMRC’s known interpretation or application.

3. Substantial possibility amount would be found to be incorrect

It is reasonable to anticipate that, if a court were to consider the way in which the amount was arrived at, there is a substantial possibility that the treatment would be found to be incorrect.

Tax advantage

The definition of tax advantage for VAT is:

  • Less output tax is accounted for or is accounted for later, than would otherwise be the case
  • If there is an input tax claim which would otherwise not be obtained; a larger claim, or a claim earlier than would otherwise be the case
  • If input tax is recovered as a recipient of a supply before the supplier accounts for the output tax; the period between the time when the input tax is recovered or the time when the output tax is accounted for is greater than would otherwise be the case
  • The amount of non-deductible tax is less than it otherwise would be
  • An obligation to account for VAT is avoided

Exemptions

There are exemptions from notification. For VAT, exemption will apply where it is reasonable to conclude that HMRC is already aware of the information which would otherwise be required to be notified or in circumstances where a business has previously requested clearance and where HMRC agrees with the proposed treatment.

Penalties

The penalty for failure to make a notification will be £5k initially, £25k for a second failure and £50k for a third failure within a three-year period. There will be an opportunity to advance a reasonable excuse argument to avoid a penalty.